The Supreme Court (TS) has annulled several articles of royal decree 958/2020 on commercial communications of gambling activities that limits gambling advertising and online betting, understanding that “certain limitations or prohibitions established in the regulatory standard are void.” of the necessary legal coverage”.
Specifically, the high court has annulled articles 13, sections 1 and 3, relating to promotional activities aimed at new clients; article 15, on the appearance of famous people in advertising; and Article 23, paragraph 1, which establishes a general prohibition on the dissemination of commercial communications through information society services.
It has also annulled article 25.3, on the advertising of the game on video sharing platforms; and article 26, in sections 2 and 3, which limits the possibility of carrying out advertising through social networks.
The magistrates of the Contentious-Administrative Chamber have adopted this decision by partially upholding the appeal presented by the Spanish Digital Gaming Association against the text approved in November 2020, when Alberto Garzón was at the head of the Ministry of Consumer Affairs.
In the ruling, reported by Europa Press, the court has stressed that in the challenged royal decree “there is no legal coverage” to establish a limitation that affects “the very essence of commercial advertising, intended to offer and promote the product or service to attract new customers.
The magistrates have explained that a “general prohibition of these characteristics” does not allow “limiting its scope” to a specific type of promotion “especially harmful or directed at vulnerable groups”, which is why they have concluded that it cannot be considered a proportional measure limited to highly addictive and dangerous offers and practices for groups at risk.
For its part, regarding the limitation of the appearance of celebrities in commercial advertisements, the court has indicated that it is a measure that “lacks legal coverage” and incurs an “excess.”
The same has been concluded with respect to the general prohibition on the dissemination of commercial communications through information society services – understood as any remote service, electronically and at the individual request of the recipient – except in the cases in which those communications are inserted into a web page or application dedicated to these games.
According to the Court, for this limitation it is not enough to invoke the protection of minors, since it understands that “it is not possible to limit advertising with a general scope to an entire medium in the event that it may be used by minors.” .
Although the Supreme Court has agreed to annul these articles, it has endorsed others by rejecting several of the arguments raised by the association, considering that said provisions have sufficient legal coverage and that the established limitations are proportional.
In this sense, the court has understood that the possibility of including in commercial communications a message regarding the “harmful effects” derived from gambling “does not exceed what constitutes the necessary technical development of the legal provisions intended for the protection of consumers and responsible gaming.
The magistrates have also not appreciated any excess in the fact that mechanisms are established for the detection of risk behavior and certain protocols to avoid it.
